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Second Circuit Limits Scope of Conspiracy Liability Under the FCPA

Today the Second Circuit issued an opinion holding that a non-U.S. citizen, employed by a foreign company, could not be prosecuted for conspiracy to violate the Foreign Corrupt Practices Act (FCPA). See United States v. Hoskins, No. 16-1010 (2d Cir. 2018) (Katzmann, Pooler, Lynch). The opinion is a statutory interpretation tour de force. Of course, the case does not necessarily present a factual scenario that attorneys will often encounter while representing indigent defendants. However, Judge Pooler’s analysis and methodology provide an excellent template for for those arguing for limitations on the scope of conspiracy liability in other contexts. The opinion is available here.

The defendant in Hoskins does not fall within any of the categories of persons who are subject to prosecution under the FCPA. This fact did not, in itself, render him immune from prosecution for conspiracy to violate the statute. As a general principle, “[a] person . . . may be liable for conspiracy even though he was incapable of committing the substantive offense.” Salinas v. United States, 522 U.S. 52, 64 (1998); see slip op. at 19. The Second Circuit determined, however, that the FCPA was not meant to create accomplice liability for those who could not be punished as principals under the statute. In reaching this conclusion, the panel carefully analyzed the Supreme Court’s reasoning and interpretive approach in Gebardi v. United States, 287 U.S. 112 (1932), which held that a woman can not be prosecuted for conspiring to violate the Mann Act simply for agreeing to be transported across state lines for a prohibited purpose. The panel went on to conclude that that the FCPA’s text, structure, legislative history, and statutory context reveal an “affirmative legislative policy to leave the category of defendants omitted from the statutory framework unpunished.” Slip op. at 36.

Judge Lynch wrote a concurring opinion seeking to limit the scope of the majority’s analysis. Although he joined Judge Pooler’s opinion in full, Judge Lynch deemed the outcome so undesirable at as a policy matter that he called upon Congress to address the issue. Moreover, Judge Lynch’s vote would have been different, he explained, if the “case involved an ordinary criminal statute with purely domestic application.” Concurring op. at 10. That this limiting principal did not find its way into the majority opinion gives defense attorneys the freedom to use Hoskins in more creative ways than Judge Lynch might prefer.